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Criminal Justice

Court Sets High Bar for 'Egregious


divorce, equitable distribution
Squibs of California

In New York State -- and in New York only -- a contested divorce requires proof of fault. One party must allege and prove that the other spouse's conduct violated one of the grounds for divorce, such as adultery, cruelty, abandonment, formal separation for a year.

The question of who is at fault, though, and how serious the conduct, however, is almost never a factor in the distribution of marital property and assets and will not defeat equitable distribution, the system which guides the division of marital property in New York. (New York is not a 50-50 state.) This was made clear last month by the state's highest court, the Court of Appeals in Howard S. v. Lillian S. (no further identification is provided).

[For more on New York's divorce laws and efforts to change it, see No Fault Divorce Creates Strange Bedfellows.]

Adultery or Fraud?

Through a DNA test, Howard learned that the youngest child of the marriage, a 3-year-old girl the couple had raised together, along with their other children, was actually the child of Lillian and another man. Howard was not the girl's father. He sued Lillian for divorce based on cruelty, adultery and fraud, the fraud being her insistence that she had been a "faithful" wife. She countersued charging abandonment.

But fraud is not one of the causes of action for divorce so that became a separate case in which Howard wanted "discovery," or pre-trial examination of Lillian and perhaps other witnesses. He was seeking information on Lillian's other relationships, the fault that he would try to use to block equitable distribution of the couple's assets and prevent her from getting what she might otherwise be entitled to.

He could not have gotten this information within the direct divorce proceedings. Since even the adultery charge would not lead to discovery on his wife's "misconduct" or have the desired effect on distribution of assets, his approach had two prongs -- to use the allegation of fraud to gain disclosure about Lillian's other relationships and then gain the assets by establishing her fault.

In the meantime, Howard demanded the return of money spent on "collaborative" justice, such as mediation, as well as his support of another man's biological child.

Dividing Property

The statute in the Domestic Relations Law concerning the distribution of marital assets, says that in addition to the basic issues such as age, health, duration of marriage and contributions to marriage, a judge may consider "any factor which the court finds to be just and proper."

In the opinion, Chief Judge Jonathan Lippman clarified any confusion on the connection between fault and equitable distribution. The opinion, from which only one of the seven Court of Appeals judges dissented, clearly stated, "We have rejected the notion that marital fault is a 'just and proper' consideration, [e]xcept in egregious cases which shock the conscience of the court."

Not Bad Enough

Before reaching the highest court, two lower courts had found that Lillian's acts did not rise to the level of "egregious fault," which might affect her financial entitlements. In other words, having a child outside the marriage and failing to disclose that to the other spouse for three years, does not figure into the calculus of equitable distribution of marital property.

Ruling this scenario did not constitute egregious conduct, the chief judge, in his opinion, gave examples of those few cases that have held conduct to be egregious. They all involved extreme violence, and in one case, attempting to bribe a judge.

In the 2002 case of Theresa Havell v. Aftab Islam, a Manhattan judge considered the usual factors in determining what would be an equitable distribution of the couple's assets. In that case, the court also considered the defendant husband's fault -- verbal and physical abuse of wife and children, including the husband's attempt to kill his wife and almost succeeding. His violent attacks did cause severe and permanent injuries to his wife, and occurred in the presence of their children.

After trial, Havell was awarded more than 95 percent of the estimated $17 million in marital assets, most of which she had contributed), with the judge calling her husband's actions so egregious as to shock the conscience.

An irony here is that the same judge, Jacqueline W. Silbermann, who found Aftab Islam's actions egregious, has since retired from the bench and is a matrimonial lawyer in private practice. It was she who represented Howard S. in his appeal where the claim of egregious conduct was rejected.

Emily Jane Goodman is a New York State Supreme Court Justice

No-Fault Divorce Creates Strange Bedfellows


no-fault divorce

There is no denying that divorce in New York can be an ugly process. Yes, even uglier than in most states. When North Dakota in 1985 adopted a no-fault divorce law, it left New York as the only state in the country not to have a process by which two people can legally end their marriage without any accusations of wrongdoing or evidence hearings.

In New York, to get a divorce, one member of the couple must prove wrongdoing by the spouse or the couple must sign a separation agreement and live separately for a year before a judge makes it official. Now, Sen. Ruth Hassell-Thompson and Assemblymember Jonathan Bing have introduced legislation that would bring New York up to speed with the rest of the country as far as divorce law goes. The Hassell-Thompson bill was voted out of the Senate Judiciary Committee on Tuesday, and Bing says his legislation has major bipartisan support in the Assembly.

But there are those who still feel the legislation will hurt women, and others who say divorce should not be made any easier. The legislation faces fervent opposition from two organizations -- an odd couple of sorts -- the Catholic Conference of New York and the National Organization for Women-NYS. Both oppose the measure, but for very different reasons.

Finding Fault

Proponents of no-fault divorce say that forcing couples to accuse each other of wrongdoing, abuse, infidelity, neglect, can make a difficult process even worse -- not only for the couple but for the children involved and also can lead to tremendous legal costs. "No one cares about no-fault divorce until their marriage is falling apart and they find out, "Oh, my god, there is no no-fault option," said Sen. Liz Krueger, who supports the Hassell-Thompson legislation, "Couples find out they have to allege something that may not really be true."

Bing said the legislation will decrease domestic violence by helping the abused partner get out of a bad marriage quickly. "I think for years there was concern that women in a lesser financial situation than their spouse would be in a bad position," said Bing, "But we've seen it work in other states, and it has reduced rates of domestic violence and the cost of divorce, because people aren't spending years in litigation."

The National Organization for Women, though, fears the bill, if passed, would put women at a disadvantage.

"We all know that divorce often plummets women into poverty. And when women live in poverty, their children are affected too. All we are asking is that the ... legislature take steps to protect the lives of women and children in divorce situations," Marcia Pappas, president of National Organization for Woman-NYS said in a March speech.

While not opposing no fault divorce, Pappas told the Legislative Gazette Hassell-Thompson bill includes a loophole that could be damaging to women. She said there is a "huge loophole in the bill for the monied spouse to trump up the reason to get a divorce without having to settle all of the issues. What it does is it leaves the lesser monied spouse in a situation where then they have to go into court and try and fight all of these issues one at a time. It leaves the lesser moneyed spouse at a disadvantage in terms of negotiating."

Basically Pappas is concerned the wording of the bill could allow the wealthier spouse to tie up their spouse in court and might give them an advantage in negotiating for custody and spousal support.

Supporters of the legislation say they feel that the new law combined with the current system will protect the rights of women. "As far being practicing attorneys, we know the relevant legal factors. And we feel their objections are not completely founded. We don't think it will hurt women or prevent them from succeeding in negotiations," said Cynthia Shrock, president of the Women's Bar Association of the State of New York.

Shrock said that some opponents of the legislation say removing "grounds" from divorce proceedings could hurt the "non-monied" spouse in divorce hearings, because they won't be able to present abuse or other conditions that could influence custody or monetary arraignments. But Shrock said that is not so. She said the courts will still be able to consider claims of abuse when considering custody and monetary awards for child and spousal support.

Divorce Prevention

The Catholic Conference of New York opposes no-fault divorce in general, contending that it makes it too easy to end a marriage.

"The fact that there is a low divorce rate in New York is not a bad thing," said Dennis Proust, spokesman for the Catholic Conference of New York. New York has traditionally had an annual divorce rate around 3 percent, according to the National Center for Health Statistics. States like California and Nevada have about a 6 percent rate.

"Marriage is supposed to be for life. It is not a cell phone contract or a car lease," said Proust. "People who are in abusive relationships have a quick way to get out and people who want to get divorced otherwise have to wait a little while, and that is not necessarily a bad thing."

Kyle McCauley Belokopitsky, director of government relations for the New York State Catholic Conference, argued before the Senate Judiciary Committee on May 6 that the proposed law would allow a divorce to happen if one member of the relationship wanted a divorce and the other didn't, "for any reason or for no reason at all."

"No-fault divorce laws in other states and countries, including Canada and England, have resulted in measurable increases in the divorce rate," he testified. "Yet, according to the social sciences, marital dissolution brings with it significant negative impacts on children, adults, families, and society as a whole."

Under the current law, divorces in New York can be granted on six grounds, such as cruel treatment, abuse or abandonment. If none of these grounds exist, a divorce can be granted if a couple lives separated for a year and a separation agreement has been reached. However, if one party fails to take court action after that year the divorce does not happen.

Easing the Pain

The Women's Bar Association of the State of New York has shifted its position on no fault divorce over the years, according to Shrock. While the organization once was afraid it would hurt women, it now believes no-fault will make divorce less hurtful for all parties involved. "I represent the child, and the longer the matrimonial action lasts the harder it is on the child. The claims made in court can be against the wife or the husband but all sides end up suffering."

Shrock said that a woman in an abusive situation who does not have much money would not benefit from the one-year separation, or "cooling off period" as some refer to it, because she would not have the means to support herself and her children away from her spouse. Meanwhile, a divorce based on the grounds of abuse would also be too costly, leaving her in the abusive relationship. She says the law will make it easier and more affordable for women to get out of abusive marriages.

A 2004 study by the Stanford Business School looked at how no-fault laws have affected rates of domestic violence and divorce in states that adopt the law. According to the study, divorce rates go up sharply after the law is passed but level out to pre-law rates in about a decade. On the other hand, domestic violence dropped sharply in states that accepted no-fault divorce as did suicide rates.

Two other bills are under consideration as part of a package of divorce reform including the no-fault provision in both the Senate and the Assembly. The first, sponsored by Sen. John Sampson and Assemblymember Helene Weinstein, would have judges decide whether one spouse should pay the other spouse's legal fees before a final judgment is made during a divorce case.

The second piece, sponsored by Hassell-Thompson and Assemblymember Amy Paulin, would create a formula for determining the amount and duration of spousal support payments. Similar legislation exists for child support payments.

Prospects for Change

So is New York likely to become the 50th state in the nation to have no-fault divorce this year? "The chances are better now than they were before," said Proust, "but it’s not a slam dunk if it gets to the floor. I think the fact that two such diverse groups as the Catholic Conference and National Organization for Women oppose this sends a message."

Proust and others who oppose the legislation think there is a good chance it could fail in the Senate. At least one Democrat -- Sen. Ruben Diaz -- opposes the measure, and it seems unlikely Democrats will be able to marshal all the votes they need from within their party. Opponents of the legislation say they expect a number of legislators probably won't voice their opinion on the matter until it comes time to vote. Eight Republican senators voted against moving the bill out of the judiciary committee. Those senators were John DeFrancisco, Kenneth LaValle, George Maziarz, Michael Nozzolio, Michael Ranzenhofer, Steve Saland, Dale Volker and George Winner. Other Republicans voted for the bill.

Bing said he hopes to translate bipartisan support for his bill in the Assembly into Republican support in the senate. "It may be hard to get through the senate with such a tight majority, but my hope is that the Republican Assembly members signed onto my bill will lobby their senators to support it so it won’t be held up if all Democrats aren't on board. I am hopeful it will pass this year."

Sen. Neil Breslin, a lawyer who is on the judiciary committee, said that he expects bipartisan support in the Senate. He said he was personally proud to move the bill because of things he has seen during his law career. "Just having witnessed, as a lawyer, the process of divorce…it is horrific. So this is very important and I think people realize that," he said.

Krueger said New York has been last on a number of child and family issues. It was, she said one of the last states to pass legislation that would allow unmarried couples with children, same sex couples or the elderly to file for restraining orders based on domestic violence. Krueger blames this on the decades-long Republican control of the Senate but she hopes Republicans now understand the issue of divorce: "I'm sure Republicans have heard from their constituents and their horror stories, they might have even experienced it themselves."

Cuts Burn Fire Department


new york city, fire department, engine, company, closure
Photo (cc) 2010 jamie_hladky

A proposal to slash 20 fire companies from the Fire Department's ranks does more than irk firefighters.

It burns them.

A crowd of elected officials and firefighters gathered in front of a Long Island City firehouse Friday to slam the Bloomberg administration's proposal to strip the department of 400 firefighters.

One of those firefighters was Bob -- a 23-year veteran of the department who did not want to use his last name for fear of repercussion. Bob has fought blazes with the rest of Queens' Hook and Ladder 116 for nine years. Cutting almost 7 percent of the city's fire companies now, Bob said, would be "crazy."

"It's more dangerous for the community and me," Bob said of the potential closures, which he contends will add catastrophic seconds to the department's record-low response time. "Another 30 seconds, a minute, forget about it."

Overall, the Bloomberg administration is proposing to cut $27 million from the Fire Department in fiscal year 2011 -- equal to about a 1.7 percent cut in controllable city funds. To close a budget gap, the administration has proposed to reduce the number of firefighters per engine, get rid of the so-called outdated street fire alarm boxes and, most controversially, close 20 fire companies.

But firefighters, city and state politicians as well as labor leaders are ready to bring the heat on the administration. They say the city cannot afford to lose any firefighters, especially in light of this month's bomb scare in Times Square. If the mayor cares about public safety and is willing to abandon cuts in police officers, they say, firefighters should be held harmless too.

"We're like the Marine Corps for the city," said Fred Sutton, a retired firefighter from Ladder 116 on Friday. "Cops are like the army."

Slashing Engines

The administration counters: There have to be cuts somewhere.

"'We've been forced into a position that we have to make choices that no one wants to make and they're very unpopular," said mayoral Spokesperson Marc LaVorgna of the fire company cuts. If the administration didn't make these decisions, then the city's fiscal situation could end up like Albany's, LaVorgna added.

The administration's proposal would aim not to close firehouses, which typically hold more than one fire company, such as a ladder and an engine company.

Critics of the cuts say the administration should look elsewhere to trim the fiscal fat. Comptroller John Liu argues the fire company closures are small compared to the entire city budget -- in fiscal year 2011 the closures would save about $5.6 million. The city could cut back on unnecessary contracts to save the engines and ladders, he said.

Others attribute the administration's proposals to fear mongering.

"This is the administration trying to scare the crap out of New Yorkers," said Assemblymember Michael Gianaris at Friday's rally in Queens.

The administration has not said what companies could close, and it does not have to until 45 days before the budget deadline of June 30, according to a mayoral spokesperson.

When asked how the department would select fire companies to close, a Fire Department spokesperson e-mailed: "The criteria would be, as always, to allocate our available resources as best we can to protect the citizens of New York City."

In anticipation of the cuts, labor officials are looking to the mayor's proposal from last year, which would have cut 16 fire companies (it was reversed by the City Council). Many think those same companies, which included a company on the South Shore of Staten Island, one on City Island in the Bronx and another in Bushwick, Brooklyn (to name just a few), will end up on the chopping block again.

The loss of 400 of the city's 11,000 firefighters under the proposal would be done through attrition, according to mayor's budget proposal.

The last time fire companies were closed was in 2003. Six engines were shuttered, including one at the firehouse in Long Island City.

Other Alternatives

Outside ladder 116 on Friday, several council members said they wouldn't take closures as the answer.

"The mayor found $100 million to secure our security services," said Councilmember Elizabeth Crowley, the chair of the council's Committee on Fire and Criminal Justice, referring to the mayor's promise to save cops from budget cuts. "Well, the Fire Department is our security services."

Photo (cc) 2010 Courtney Gross

For now, fire, state and council officials aren't looking to compromise, and they are using the recent scare in Times Square to bulk up their argument.

"We are prepared and trained to do the unimaginable, respond to a biological, chemical, nuclear or radiological attack. We can't do that from a closed firehouse," said Steve Cassidy, the president of the Uniformed Firefighters Association. "Last Saturday was the reminder that New York City remains the number one target for terrorists. I am not sure the mayor got the message."

In terms of need, fire officials say the city now has fewer fires than in years past. In 2009, the department responded to 43,677 fires compared to 51,563 in 2002. But, labor officials argue, the department has taken on other responsibilities, like building inspections resulting from the fire at the Deutsche Bank building in 2007. In 2002, the department responded to 374,949 non-fire incidents. In 2009, they went to 429,541 incidents -- an increase of 14.6 percent.

All of that takes manpower, said labor leaders, and the city can't lose any of it.

When asked whether fire unions would consider contributing to health care costs or other benefits to save fire companies, union officials scoffed.

"Fire protection should not be paid for by firefighters," said Capt. Al Hagan, the president of the Uniformed Fire Officers Association. "We feel that fire protection should be paid for by the people, and we think the people have no objection to paying for fire protection."



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